Filed 06/27/17 Lenard v. GB Construction CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


RICHARD A. LENARD,

Plaintiff and Appellant,

v.

GB CONSTRUCTION et al.,

Defendants and Respondents.


G053827

(Super. Ct. No. 30-2013-00650287)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee , Judge. Affirmed.
Richard A. Lenard, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
* * *
Plaintiff Richard Lenard sued GB Construction, Pedro Garcia, William Bartz, Walter Petroske, WGPDesign, JMS Construction and James Soto for breach of a construction contract on a room addition to Lenard’s home. Lenard attached his contract with GB Construction to his complaint. That contract was signed by William Bartz as the “representative” of GB Construction. Lenard’s grievance against the “defendants, and each of them,” was that they “failed to complete the remodeling project in a timely and workmanship like manner.”
The case went to a one-day trial before the court. It was established that the “GB” in GB Construction stands for “Gonzalez Brothers,” and Pedro Garcia’s full name is Pedro Gonzalez Garcia. (Garcia is his mother’s name). There was also no real dispute about the lack of completion. Garcia acknowledged in his own testimony it would take “around 50 grand” to finish.
Around $50,000 was the amount of the judgment the court pronounced – $55,000 to be exact. But the judgment is only against GB Construction and Pedro Garcia. Bartz was not included even though the judgment recites that he had “served Defendants GB Construction and Pedro Garcia in the capacity of employee/salesman.” Lenard has appealed and assigns that as error.
Lenard presents a two-part argument on appeal: He asserts that (1) Bartz did not plead respondeat superior as an affirmative defense in his answer (that is correct) and (2) the “defendants/respondents” (by which presumably he means both Bartz and Garcia) “provided no factual basis or documents to support the respondeat superior affirmative defense.” From these premises he reasons the trial court had no alternative but to find Bartz individually liable.
Lenard’s argument is unavailing for a reason more basic than a defendant’s duty to mention affirmative defenses in its answer – namely the plaintiff’s duty to prove the various elements of its case. (See Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 189 [“The burden to prove the elements of its case is on the plaintiff.”]; accord, Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”].) Lenard never established a basis on which to hold Bartz individually liable, so his failure to prove an affirmative defense is moot.
Lenard alleged the existence of a contract between him and GB Construction, as attached to his complaint. That contract showed, on its face, that Bartz was only GB Construction’s “representative.” By attaching the contract, Lenard was essentially alleging that Bartz was the agent of GB Construction. (See Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1 [“facts contained in the exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading”].) That is all he alleged about Bartz.
Further, much of Lenard’s case at trial was directed toward making the point that Bartz was an employee of GB Construction. It was Lenard who elicited the testimony from Garcia that Bartz was in fact GB Construction’s employee. Lenard asked Garcia: “He [referring to Bartz] sold the job, can you explain that a little more?” Garcia answered: “He basically that salesman, something like that, salesman for the company.”
Lenard then went on to reiterate Bartz’s employee status when Bartz was on the stand. Lenard asked Bartz: “You worked for GB Construction during he time in question from December of 2011 through approximately August of 2012; is that correct?” Bartz answered yes. And then Lenard established that Bartz worked not only as a salesperson, but also as a job site supervisor: “Q. [By Lenard]: What was your capacity with GB Construction? [¶] A: Superintendent. Foreman.”
Lenard also established that Bartz was on the site a considerable amount of time, as one might expect an employee of GB Construction to be: “Q. [By Lenard]: How many days a week would you say that you worked there? [¶] A: I don’t know. Maybe three days a week.”
Finally, to leave no doubt on the point, we have the most dispositive revelation in the case directly from Lenard’s mouth. While being examined by Garcia, Lenard was asked why he had made a habit of giving checks for the progressing work to Bartz directly rather than Garcia. Lenard said he did so at Bartz’s request with Garcia’s full permission: “By Mr. Gonzalez: [¶] Q. Who gave you [Lenard] the authorization? Who gave you permission to write that check out? [¶] A. Mr. Bartz. [¶] Q. But you said you entered the contract with GB Construction. Who is the owner of GB Construction? [¶] A. You are. [¶] Q. And who is Mr. Bartz? [¶] A. An employee. [¶] Q. Okay. And how much money would you say you gave my company or me or write a personal check towards me? [¶] A. Well, I wrote the checks to Mr. Bartz. And as you testified earlier you were on the scene for several weeks, and you made no objection.” (Italics added.)
At the end of the trial the judge gave Lenard a chance to explain why Bartz should be independently liable. Lenard gave two reasons: (1) Bartz “did most of the work.” (2) Bartz “signed the contract.” But the judge was correct to disregard these reasons, since they merely emphasized Bartz’s employee status as both representative and job site foreman for GB Construction.
Lenard was thus forced to fall back on the theory that Bartz should be automatically liable because he did not mention his employee status in his own answer. But given the nature of Lenard’s breach of contract action and the proof that Lenard himself put on, Bartz didn’t have to. The statute on which Lenard relies for what is essentially a forfeiture argument, section 431.30, subdivision (b), requires new matter constituting a defense. Bartz’s representative status for GB Construction had already been alleged in the complaint and Lenard himself had done his best to nail that status down.
Lenard gave the trial court no choice but to conclude Bartz was only GB Construction’s employee. The judgment is affirmed. Since there is no respondent’s brief, Lenard will bear only his own costs on appeal.




BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.